The NJ Appellate Division held that the Mayor of the City of Newark has the authority, as a managerial prerogative, to mandate that all City employees be fully vaccinated against COVID-19. Nine unions representing City employees filed unfair labor practice charges against the City with the Public Employment Relations Commission (PERC). The unions had requested an injunction to prevent implementing the mandate before the City negotiated with the unions. A Director of PERC issued an order granting in part and denying the unions' request for preliminary injunctive relief.
On leave granted, the Court affirmed the portion of the PERC order that held that the Mayor has a managerial prerogative to issue the mandate but vacates the portion of PERC's order that imposed restraints on the City or required any negotiations concerning the implementation, timing, or enforcement of the City's vaccination mandate.
The Court stated, “When a public health emergency exists, governmental entities, including local authorities, have a recognized right to require vaccinations. See Jacobson v. Commonwealth of Mass., 197 U.S. 11, 27-28 (1905) (holding that a city's board of health could require vaccination when authorized by state law); Sadlock v. Bd. of Ed. of Carlstadt in Bergen Cnty., 137 N.J.L. 85, 87 (Sup. Ct. 1948) (upholding a board of education's compulsory vaccination requirement adopted in accordance with state law).”
“In support of establishing the immediate health emergency created by COVID-19, the City submitted a certification of Dr. Mark Wade, Director of Newark's Department of Health and Community Wellness. Dr. Wade certified that (1) as of late July 2021, 95.5% of COVID-19 infections in New Jersey were caused by the Delta variant and 99.93% of COVID-19 hospitalizations were unvaccinated or not fully vaccinated persons; (2) in June and July 2021, 92.23% of those who had contracted COVID-19 in Newark had been unvaccinated; (3) unvaccinated people are at a "tremendously higher risk" of both contracting the COVID-19 Delta variant and of passing on the infection to someone else; and (4) the COVID-19 vaccination mandate will increase the number of vaccinated individuals in Newark, significantly reducing hospitalization and deaths resulting from COVID-19 and limiting COVID-19's ability to mutate into deadlier or more contagious variants.’”
“Consistent with those declarations, the President of the United States has directed that all federal workers, as well as workers for federal contractors, be vaccinated or comply with testing requirements. Our Governor has also announced that all state employees will be required to be vaccinated or comply with testing requirements. In addition, our Chief Justice has issued a directive requiring all judicial employees to be vaccinated or comply with testing requirements. Moreover, other federal agencies, state officials, cities, and municipalities have also issued similar COVID-19 vaccination requirements.”
“….the City has a managerial prerogative to implement its vaccination mandate.”
CITY OF NEWARK VS. NEWARK POLICE SUPERIOR OFFICER'S ASSOCIATION, ET AL. (PUBLIC EMPLOYMENT RELATIONS COMMISSION) (CONSOLIDATED) A-0146-21/A-0159-21, Sept. 27, 2021, https://www.njcourts.gov/attorneys/assets/opinions/appellate/published/a0146-21a0159-21.pdf?c=I3N
Recommended Citation: Jon L. Gelman, NJ Appellate Division Rules That The City of Newark Can Implement Its Vaccine Mandate, Workers' Compensation Blog (Sept. 28, 2021), https://workers-compensation.blogspot.com/2021/09/nj-appellate-division-rules-that-city.html
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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (Thomson-Reuters). For over four decades, the Law Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com has been representing injured workers and their families who have suffered occupational accidents and illnesses.
Blog: Workers ' Compensation
Twitter: jongelman
LinkedIn: JonGelman
LinkedIn Group: Injured Workers Law & Advocacy Group
Author: "Workers' Compensation Law" Thomson-Reuters
